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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Clift v R. [2012] EWCA Crim 2750 (18 December 2012) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2012/2750.html Cite as: [2013] WLR 2093, [2013] 1 WLR 2093, [2012] WLR(D) 387, [2012] EWCA Crim 2750, [2013] 1 Cr App R 15, [2013] 2 All ER 776, [2013] Crim LR 506

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM (1) LUTON CROWN COURT (2) TRURO CROWN COURT
(1) Mr Justice Saunders (2) Mr Justice Burnett
(1) T2011/7032: (2) T2008/7001; 2011/7034

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/12/2012

The Lord Chief Justice of England and Wales:

Introduction

1. These otherwise unconnected cases, one an appeal against conviction, the other an application for leave to appeal against conviction, follow convictions for murder and require us to examine the proper ambit of s.74(3) of the Police and Criminal Evidence Act (the 1984 Act).
2. Both appellants (as, for convenience we shall describe the defendants), were convicted of murder several years after they had inflicted what eventually proved to be fatal injuries on their victims. Both were sentenced to life imprisonment. The minimum term in Clift's case was 6 years and in Harrison's case 16 years. While their victims were still alive both were convicted of violent offences against them contrary to s.18 of the Offences Against the Person Act 1861. The criticism and the basis for each appeal is that earlier convictions based on the opinion of the juries, as expressed in their verdicts, were irrelevant and inadmissible at the subsequent trials.
3. Two statutory provisions are relevant. Section 74(3) of the 1984 Act provides:

"In any proceedings where evidence is admissible of the fact that the accused has committed an offence, if the accused is proved to have been convicted of the offence –

(a) by or before any court in the United Kingdom …

(b) he shall be taken to have committed that offence unless the contrary is proved."

Section 78 of the 1984 Act, so far as material, provides:

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears that, having regard to all the circumstances … the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".

4. The context is the Law Reform (Year and a Day Rule) Act 1996. This abolished the common law rule that an essential ingredient of the offence of murder was that the death of the individual wounded or injured should take place within a year and a day after the attack. Provided the actions of the defendant are proved to have caused death, the lapse of time between the unlawful actions of the defendant and the date of death is no longer material to guilt. This new provision is reflective of a number of different features, including the ability of medical science to extend life for very much longer than it once could, and the increasing expertise which enables convincing evidence to be adduced to demonstrate that the eventual death, even years after the original attack, was caused by or in the course of injuries inflicted at the much earlier date. Where, notwithstanding grievous injuries the victim is still alive, the hope is that he will survive. On the other hand, proceedings against the person responsible for causing or inflicting severe injuries cannot and should not be indefinitely postponed. The perpetrator should be brought to justice and trial.

R v Clift

5. On 18 January 2002 Leigh Clift was convicted at Luton Crown Court before His Honour Judge Baker QC and a jury of wounding Jonathan Barton with intent to cause grievous bodily harm contrary to s.18 of the Offences against the Person Act 1861. He was sentenced to 10 years imprisonment, from which he was released in January 2007.
6. The conviction arose from an attack by the appellant on Jonathan Barton on 8 September 2000. The appellant wielded a screwdriver which penetrated the left side of Mr Barton's head and fractured his skull, causing a catastrophic brain injury. In convicting him the jury was satisfied that he had not been acting in self defence and that all the ingredients of this offence were proved. Mr Barton lived for the remainder of his life in a variety of hospitals and rehabilitation units and in a special extension built at his mother's home, totally dependent for all activities of daily living on his carers. One of the consequences of his injuries was that he had to be fed through a tube. On 10 July 2009 the tube need to be re-inserted, but following an operation, a complication developed which resulted in his death in the early hours of 11 July 2009.
7. A post mortem was conducted a few days later by Dr Fegan-Earl. He concluded that the original attack in September 2000 and the death in 2009 were connected. Dealing with it in summary for the purposes of this case, the assault on Mr Barton led to the severe brain injury which meant that he had to be fed through a tube. Although this was correctly inserted, the complication identified as a small bowel volvolus, a condition in which the small bowel twists on itself, arose and compromised the blood supply, and leading in turn to oxygen deprivation to the bowel which dies and causes bowl obstruction. As a result of the obstruction of the bowel Mr Barton suffered a fatal cardiac arrest. After the post mortem the deceased's brain was examined by a neuropathologist. The examination revealed significant and wide spread damage caused by the original injury. This would have led to yet more complications, particularly relating to feeding and respiration and contributed to Mr Barton's death. His consultant, Dr Richard Smith, who had been treating him since 2006 agreed with the opinions of the pathologist. In effect, he concluded that Mr Barton's death was caused by medical complications due to his condition which was in turn caused by the original catastrophic brain injury.
8. The appellant was duly charged with Barton's murder. At trial the prosecution applied to adduce the appellant's conviction of the s.18 offence against Barton in accordance with s.74(3) of the 1984 Act. Saunders J decided that the evidence that the appellant had indeed committed this wounding offence was admissible and relevant as part of the evidence which went to prove the murder. He also rejected the submission that it would be unfair for this evidence to be adduced and that it should be excluded under s.78 of the 1984 Act. The judge decided that the appellant's original trial had been fairly conducted, and noted that there had been no appeal against that conviction. Therefore for the purposes of s.78 of the 1984 Act it was not unfair for the defendant to have to deal with the evidential consequences of the earlier conviction, including, of course, the shift in the burden of proof to the defendant to disprove the conclusions of the original jury.
9. The trial involved a close examination of the cause of death. The defendant gave evidence in support of his defence that he had acted in self defence. Saunders J directed the jury that the prosecution was required to prove the elements of murder beyond reasonable doubt. He then addressed the impact of the earlier conviction. A number of the matters to be proved to establish wounding with intent to cause grievous bodily harm were

"the same as the matters that they (the prosecution) have to prove to prove murder".

The prosecution was not

"required to prove those elements of the charge of murder again which they have already proved beyond reasonable doubt and proving the charge of wounding with intent to cause really serious bodily harm … you must assume that those matters are proved subject to the right of the defendant to prove the contrary if he can … it is a different burden of proof. It is not beyond reasonable doubt for the defendant. It is on the balance of probabilities".

10. Carefully distinguishing between those issues which had been proved in the earlier trial and those which had not, committing ourselves to the issues which arise in this appeal, he directed the jury that before they could convict of murder they had to be sure that the injuries inflicted by the appellant on Mr Barton in September 2000 contributed significantly to his death in July 2009. If they were sure then

•    Was it more likely than not that the blow with the screwdriver which penetrated the brain of Mr Barton was inflicted accidentally rather than a deliberate act by the appellant?

•    If no, was it more likely than not that the appellant was acting in lawful self-defence when he inflicted the injuries on Mr Barton?

•    If no, was it more likely than not that the appellant did not intend to cause really serious injury when he caused the injury to Mr Barton?

11. The jury rejected the defendant's case that, however the matter was examined, there remained the possibility that the small bowel volvolus might have occurred in some way which was unconnected with the original injury suffered in 2000. In short, they were sure that the appellant's violence towards Mr Barton at that time caused the death which occurred some nine years or so later. The appellant was convicted of murder and sentenced to imprisonment for life, with a minimum term based on 6 years, taking full account of the sentence he had already completed following his conviction on the earlier occasion.

Brian Harrison

12. Brian Harrison was tried at the Crown Court at Truro before His Honour Judge Elwen and a jury on a two count indictment. The first count alleged attempted murder of Neville Dunn on 31^st December 2007, the second, causing Mr Dunn grievous bodily harm with intent to do grievous bodily harm on the same occasion. On 11 July 2008 the jury acquitted him of attempted murder and convicted him of causing grievous bodily harm contrary to s.18 of the Offences against the Person Act 1861. He was sentenced to imprisonment for public protection, with a specified minimum term of 6 years.
13. Dealing with the facts very briefly, the applicant was in an on/off relationship with Carla Dawson by whom he had had a child. In late 2006 and early 2007, while still involved in that relationship, Carla Dawson had a brief sexual encounter with Mr Dunn. The applicant found out about it towards the end of 2007. He believed that Mr Dunn had raped Carla. On 31^st December 2007 he decided that he would find out precisely what had happened between them. At about mid-day or shortly afterwards, Mr Dunn was fetched from his home and taken to Carla Dawson's home. In the living room, according to the case for the prosecution, the applicant punched Mr Dunn to the head in an unprovoked attack which caused him to fall unconscious to the floor. Thereafter he kicked Mr Dunn in the head more than once as he lay on the floor. Thereafter, with assistance, he put Mr Dunn into his car and drove him to the home of Carla Dawson's mother. When they arrived there he removed Mr Dunn from the car and threw him hard onto the pavement and again kicked him repeatedly in the head. During the next few hours the applicant visited a number of his friends, admitting that he had lost his temper and attacked Mr Dunn. He told one witness that he had beaten Mr Dunn and stamped on his head. He told another that he had lost his rag and that during the course of the attack on Mr Dunn he did not know when to stop. He told another witness that he had "murdered Mr Dunn" using his feet. He did however assert that he had not intended to kill or hurt him badly.
14. Mr Dunn suffered a very severe brain injury. He was hospitalised, and thereafter he remained minimally conscious and entirely dependent on medical assistance to sustain his life. He died on 17 October 2009 as a result of complications arising from the head injury sustained nearly two years earlier.
15. The defence case at the original trial was that he had struck Mr Dunn a single punch to the head which knocked him to the floor. He did not assault him any further. He did drive him away, intending to go to hospital, but changing his mind in a panic. At the home of Carla Dawson's mother, while lifting Mr Dunn from the back seat, he accidentally dropped him, causing Mr Dunn to strike his head on the pavement. There was no intention to kill or cause serious bodily harm. In short, there was a single punch, in circumstances where he believed he was acting in lawful self defence, and no further act of violence, and the fall as he lifted Mr Dunn from the car was an accident.
16. In view of a specific submission which arises in this case, we shall identify some specific further features of the first trial. In discussion with counsel before the summing up, Judge Elwen expressed himself in unequivocal terms. The defendant (as he then was) "is not to my mind, whatever alternatives on the evidence may be open, here simply to be found guilty of something. It seems to me that the jury should consider only what is on the indictment."
17. In due course the judge provided the jury with accurate directions about the ingredients of the two offences before them for consideration. He further directed them that even if they took the view that the applicant had been responsible for an unlawful attack on Mr Dunn, but without the intention to cause him grievous bodily harm, or if the traumatic brain injury may have been the result of an accident when Mr Dunn slipped from the defendant's grasp, he must be acquitted. He returned to this issue shortly afterwards and directed the jury that they must exclude any question of self defence or accident. He continued "both counts require proof so that you are sure that the defendant had a specific intention to kill or cause really serious injury".
18. The applicant sought leave to appeal against conviction. The main ground was that the judge had failed to leave open to the jury the possibility of a conviction of an offence contrary to s.20 of the 1861 Act. Consequently, it was suggested that on the basis of R v Coutts [2006] UKHL 39, the conviction was unsafe. The single judge refused leave on the basis that "there was no reason, based on the evidence, for the judge to direct as to an s.20 alternative. The court had heard that you threw deliberately/threw aggressively/threw onto hard ground, the victim's head, hitting it. … Merely because a jury had a convict/acquit option is not an indicator for including a lesser alternative. The Crown could argue, had such been included, that it was an inappropriate means to an improper compromise". The application for leave to appeal against conviction was not renewed.
19. Following Mr Dunn's death, the applicant was charged with and eventually tried for his murder. The prosecution successfully applied for the conviction of causing grievous bodily harm with intent to be adduced in evidence under s.74(3) of the 1984 Act. At the close of the evidence it was submitted that the issues of manslaughter on the basis of lack of intent should be left to the jury. Burnett J agreed, and did so. No criticism is directed at the summing up, the effect of which was that the prosecution had to prove that Mr Mr Dunn's death resulted from the unlawful activities and consequent injuries of the applicant, and that they were required to exclude provocation. However in view of the earlier conviction, it was for the defendant to show on the balance of probabilities that the death did not result from a deliberate unlawful act by the applicant and that he did not intend to cause Mr Dunn really serious harm.
20. On 6 March 2012, in the Crown Court at Truro Harrison was convicted of murder. He was sentenced to imprisonment for life, with 16 years as the specified minimum term.
21. In relation to the conviction, there are two applications before us, the first, an application for an extension of time in excess of 3 years in which to renew an application for leave to appeal against his conviction in July 2008, and the second, for leave to appeal against the conviction for murder in 2012. Harrison also seeks leave to appeal against sentence. The applications in relation to conviction are connected. If the conviction at the first trial was unsafe, evidence relating to it could not have been adduced in the second trial, and if it is safe, it should have been excluded both because it was inadmissible at the second trial and if not, as a matter of discretion under s.78 of the 1984 Act. It was submitted that the effect of s.74(3) meant that, if admitted, and given effect in accordance with the statutory provision, the defence task at the trial for murder would, effectively, be impossible.

The extension of time

22. Harrison has had ample time to renew his application for leave to appeal against the conviction for the s.18 offence. If it was to be pursued he could and should have renewed it as soon as it was refused, or within the normal time limit. He could also have sought an extension of time soon after he was charged with Mr Dunn's murder. Thereafter there were a number of pre-trial hearings, the most important of which was the hearing at which Burnett J decided that the Crown could adduce evidence of the earlier conviction during the course of the forthcoming trial for murder. Still no attempt was made to renew the application for leave to appeal. It was not made until after the jury convicted him of murder. In his submissions Mr Laws QC suggested that there was no material to justify an attempt to seek to renew the application for leave to appeal until Burnett J decided, having heard the evidence adduced before the jury at the murder trial, that the issue of manslaughter should be left to them for consideration. Mr Laws submitted that that represented a turning point, and indeed that the decision by Burnett J to leave manslaughter to the jury meant that two different judges had in effect addressed the issue of whether the s.20 offence should have been left to the jury at the first trial and reached different conclusions.
23. The flaw in this submission is that it fails to acknowledge that these were indeed two distinct trials. Before the murder trial began the defence case statement stated boldly that the defendant did not intend to kill Mr Dunn or inflict serious bodily harm on him. At the second trial he gave evidence to this effect. Perhaps as a matter of caution, based on the consequences of a conviction for murder, perhaps as a matter of practice so deeply embedded that it has come to be treated virtually as a matter of principle, but certainly where the defendant gives evidence to this effect, the issue of intent is invariably left to the jury. That does not apply to the first trial where, as Judge Elwen put it, the issue before the jury was so stark that the interests of justice did not require a jury considering attempted murder and the s.18 offence to be confused by reference to a possible s.20 verdict on the basis that the defendant should be found guilty of "something".
24. We know precisely how Judge Elwen approached the problem which arose in the context of the irreconcilable and major factual dispute between the prosecution and the defendant. On the one side, the Crown was contending that Mr Dunn had been the victim of a prolonged attack of some ferocity, with repeated violence, including kicks to the head while he was unconscious, and a deliberate action which resulted in his head striking the pavement. On the other side, the defence case was that Harrison struck Mr Dunn a single blow while he was conscious, and that any serious injury which he suffered occurred when he was accidentally dropped by the applicant. On this version it would have been wholly unjust for the defendant to be convicted of anything. The tortuous route to a possible s.20 verdict would have disadvantaged him, and in context for this verdict to have been left to the jury would not have been reflective of the real issues in the case. (See R v Foster and Others [2007] 1 Cr. App. R 38, explaining R v Coutts [2007] 1 Cr App R 6).
25. In our judgment Judge Elwen was entitled to approach the issues which arose at the first trial in the way he did. This approach did not lead to injustice to the applicant. Given that Burnett J decided to admit the evidence of the earlier conviction in the murder trial, there was an urgent imperative that if indeed the earlier conviction was unsafe, it should as quickly as possible, be set aside. In the trial for murder, if manslaughter on the basis of intent had not been left to the jury, that would have founded a ground of appeal against conviction. It does not however follow that the decision to leave manslaughter to the jury undermined the safety of the conviction at the earlier trial. It would be quite inappropriate for the necessary extension of time to be granted following the applicant's conviction for murder at this late stage, in effect, as a satellite means of attacking the conviction for murder. In any event, for the reasons which now follow the substantive ground of appeal is without merit. This application for leave to appeal is refused.

The admissibility of the earlier conviction

26. The submission on behalf of both appellants begins with the common law. In R v Hogan [1974] 1 QB 398, the essential facts were very similar to those which obtain here, save that the victim of the section 18 offence died within five months of the violence which caused his death. Lawson J held that, on the proper application of estoppel principles, the defendant was prevented from questioning any of the matters decided against him at the trial of the section 18 offence. Although this decision was subsequently upheld in a different case by the Court of Criminal Appeal, it was emphatically reversed by the House of Lords in DPP v Humphrys [1977] AC 1, a decision now heavily relied on by counsel for the appellants.
27. In Humphrys, notwithstanding his denials, the defendant was convicted of driving while disqualified. He was then charged with perjury, an allegation based on his false evidence at trial that he was the driver of the vehicle. Estoppel was held to apply. The House of Lords disagreed. Hogan was overruled. In agreement with Viscount Dilhorne, Lord Salmon, at 48A, spoke in trenchant unequivocal terms:

"… there is not a spark of authority or commonsense to support the ruling that when A has previously been convicted of causing grievous bodily harm to B with intent to cause him grievous bodily harm, and subsequently B dies A should automatically be convicted of B's murder if it is proved that B's death was caused by the grievous bodily harm which A had formerly been causing. On a charge of murder the onus lies on the prosecution to prove their case, not by technical doctrine but by evidence, and the jury's duty is to decide the case on the evidence called before them, which might be quite different to the evidence adduced in the previous trial".

28. The technical doctrine to which Lord Salmon was referring was issue estoppel. In the criminal justice system such a principle did not exist. In short, a conviction for murder could not "automatically" flow from an earlier conviction of a s.18 offence involving the subsequent death of the same victim.
29. Counsel for the appellants drew attention to the views expressed in the Law Commission Report, Legislating the Criminal Code: the Year and a Day Rule in Homicide (1995 Law Com No. 230). Two observations were highlighted:

"… the doctrine proposed in Hogan which was disapproved in Humphrys was issue estoppel, whereas s.74(3) creates a presumption of guilt. Academics who have discussed this issue assume that the prosecution could rely on s.74(3) to use the defendant's prior conviction for a non-fatal offence with which he has subsequently been charged". (footnote to paragraph 6.4)

"We suspect that in practice judges might well be reluctant to allow the use of sub-section 74(3) in homicide cases where the defendant has previously been convicted of a related non-fatal offence. We consider making a recommendation that evidence of a previous conviction of a non-fatal offence should not be permitted to be used as evidence in a subsequent prosecution for a homicide offence arising out of the same facts. We believe, however, that the discretion given to the court under s.78 of the Police and Criminal Evidence Act 1984 amounts to an adequate safeguard. We have not found any evidence that shows that s.74(3) is being operated unfairly. In our opinion it is significant that only one of our respondents … commented on this sub-section at all". (para 6.8)

30. Certainly, in his commentary on the earlier decision in R v O'Connor [1987] Crim LR 260 the late Professor Sir John Smith underlined "the justice of excluding the evidence of the conviction in these cases on familiar unfairness grounds in s.78 of the Act". Perhaps he was the respondent who made the comment referred to by the Law Commission. However, when the commentary is read as a whole, Professor Smith undoubtedly recognised that following the overruling of Hogan by the House of Lords in Humphrys, the conviction of causing grievous bodily harm would have been inadmissible on the murder charge, but that Hogan seemed to be:

"… partly restored by s.74(3). There is still no estoppel by virtue of Humphreys but the conviction is now admissible in evidence at the murder trial and establishes that the defendant caused grievous bodily harm … on that day with intent to do so. The prosecution need only prove that death resulted from that harm and (if there is any evidence of provocation) that there was no sufficient provocation. It is then for the defendant to prove on a balance of probabilities, if he can, that he did not inflict the grievous bodily harm, or that he did not intend to do so".

31. Nothing in the subsequent decisions of this court drawn to our attention suggest that this observation is open to question. Indeed on full analysis, rather than by reference to clauses or isolated sentences in individual paragraphs in the judgments, the approach of this court in R v Harry Harris [2001] Cr. L R 227,, R v Shanks [2003] EWCA Crim 680 and R v Young [2005] EWCA Crim 2963 is consistent with it.
32. In R v C [2010] EWCA Crim 2971 this court identified:

"… the stark principle … that any defendant is entitled to contest his guilt in accordance with the ordinary processes of the criminal justice system, and therefore to challenge or to seek to undermine the Crown's case against him or to advance evidence in support of his own case".

On the other hand

"Section 74(3) is uncomplicated and it means exactly what it says: … The evidential presumption is that the conviction truthfully reflects the fact that the defendant committed the offence. (para 9)"

33. The enactment of s.74 of the 1984 Act reflected the views of the Eleventh Report of the Criminal Law Revision Committee (Cmnd. 4991 paras 217-220). In effect it extended the provisions of the Civil Evidence Act 1968, abolishing the common law rule in Hollington v Hewthorn [1943] KB 587, to the criminal justice process. It did not revive the doctrine of issue estoppel, but in circumstances like the present, the earlier conviction of the s.18 offence constitute admissible evidence to prove, following the death of the victim, that the defendant was guilty not merely of wounding or causing grievous bodily harm with intent, but of murder. The prosecution is not required to prove all the matters already proved to the criminal standard, and the defendant is not prevented or excluded from denying them. In relation to matters already proved against him, however, the burden of proof shifts to him.
34. The Law Commission believed in 1995 that these provisions would not impinge on Article 6 of the European Convention on Human Rights, and the right to a fair trial. At common law, the Criminal Law Revision Committee thought it "quite wrong, as well as being inconvenient, that the prosecution should be required to prove again the guilt of the person concerned". In effect, it was recognising that the new statutory arrangements would not undermine common law principles relating to a fair trial either.
35. In relation to Lord Salmon's observation in Humphrys, what would be contrary to commonsense and fairness would be for the jury trying the defendant for murder to be "automatically" confined to deciding the cause of death and, where it might arise, provocation. That is not what s.74(3) provides nor does it follow from its proper application. The defendant is fully entitled to advance his defence, and if he does, it remains open to the jury to acquit him.
36. There is, in addition, the separate safeguard under s.78, which permits the judge to exclude the evidence. Fairness, of course, runs both ways: the exclusion of admissible evidence may well be unfair to the prosecution. Without seeking to curtail the valuable judicial weapon against unfairness in the criminal justice system embodied in and exemplified by s.78, it would be something of a novel proposition for the exercise of this discretion to enable the court to exclude evidence when its admissibility stems from the enactment of a statutory provision deliberately designed to permit the evidence to be adduced. Accordingly, the evidence of the earlier convictions cannot be excluded on the basis of some nebulous sense of unfairness. If s.78 were used to circumvent a clear statutory provision for no better reason than judicial or academic distaste for it, the discretion would be improperly exercised.
37. In these trials neither judge could see any specific feature of the case, or the evidence, or the circumstances, to lead him to exercise the s.78 jurisdiction. In our judgment they were right.
38. The appeal against conviction is dismissed and the application for leave to appeal against conviction is refused.

Harrison – application for leave to appeal against sentence

39. In his sentencing remarks the judge took account of the deliberate vicious and repeated nature of the attack on the deceased, an offence aggravated by Harrison's long history of violent offending and his lack of remorse. The judge proceeded on the basis, in effect loyally following Harrison's acquittal of attempted murder at the earlier trial that there was no intention to kill, and that he was motivated in part by his suspicions about the relationship between Mr Dunn and Carla Dawson. He recognised, too, that there had been good progress while in prison. Balancing all these considerations he decided that the minimum term should be 16 years, but that it should be effective with effect from 1^st January 2008, the date of Harrison's arrest.
40. It is suggested that the minimum term is manifestly excessive. We do not agree. It carefully balanced all the relevant considerations, giving appropriate credit, but equally, not flinching from the realities of the violence to which Mr Dunn was subjected. This application is refused.